Referencias
The Employment Act [EA] No.29 of 1982, as last amended by the Employment Act of October 20, 2010.
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Code of Good Practice on Employment Discrimination of 2002.
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Code of Good Practice on Termination of Employment of 2002.
[Please note that, although this Code is not binding, it should be used by employers as a guideline when exercising their powers of discipline and dismissal. In addition, it must be considered by any competent authority assessing whether or not the dismissal is fair]
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Ámbito de aplicación
Tamaño de las empresas excluidas (≤): ninguna
Categorías de trabajadores excluidas: funcionarios publicos
See sec. 2 of the Employment Act: "employee" means any person who has, either before or after the commencement of this Act, entered into a contract of employment for the hire of his labour: Provided that the expression shall not include a public officer.
CDD regulados: Si
Art. 17 al.1 of the EA. A contract of employment for a specified piece of work, without reference to time, or for a specified period of time shall, unless otherwise lawfully terminated, terminate when the work specified in the contract is completed or the period of time for which the contract was made expires.
Razones de utilización legítima de CDD: sin restricción
No statutory limitation.
Número máximo de CDD consecutivos: sin restricción
No maximum number specified in the legislation. However, under the Code of Good Practice, an employer who fails to renew a fixed-term contract, when a reasonable expectation that it will be renewed is held by the employee, is deemed to have dismissed the employee.
Duración máxima acumulativa de CDD consecutivos: sin limitación
No statutory limitation.
Duración maxima del periodo de prueba (en meses): 12 mes(es)
Art. 20 EA : the probatory period can not exceed three months in the case of unskilled employees, and twelve months in the case of skilled employees.
Excluded from protection against dismissal: Si
See the art 20-2 EA. In the absence of specific provisions expressly stipulated in the contract, the probationary period may be terminated at any time without notice by the will of one of the parties.
Obligación de motivar el despido: Si
Motivos autorizados (despido justificado):
Motivos prohibidos: estado civil, licencia de maternidad, presentación de una queja contra el empleador, raza, color, sexo, opinion política, origen social, edad, afiliación sindical y actividades sindicales, discapacidad, estatus VIH, cumplir obligaciones cívicas, origen étnico
See Art. 23 of the EA. Restriction of grounds on which employers may terminate contracts of employment: Notwithstanding anything contained in a contract of employment, an employer shall not terminate the contract of employment on the ground of-
(a) the employee's membership of a registered trade union or participation in any activities connected with a registered trade union outside working hours or, with the consent of the employer, within working hours;
(b) the employee seeking office as or acting or having acted in the capacity of an employees' representative;
(c) the employee making, in good faith, a complaint or participating in proceedings against the employer involving the alleged violation of any law;
(d) the employee's race, tribe, place of origin, social origin, marital status, gender, sexual orientation, colour, creed, health status or disability; or
(e) any other reason which does not affect the employee's ability to perform that employee's duties under the contract of employment.
Art.116 EA. Prohibition of serving notice of termination of contract of employment during maternity leave.
The Code of Good Practice provides that harassment of an employee, whether of a sexual nature or otherwise, constitutes a form of discrimination.
Trabajadores que gozan de una protección particular (fuero): mujeres embarazadas o con licencia de maternidad
Art. 116 LC. Prohibition of dismissal during maternity leave.
Forma de la notificación del despido al trabajador: escrita
See the art. 18 al.5 of the EA : Notice of intention to terminate the contract shall be in writing. However, it may also be given orally by either party if he is illiterate.
Plazo de preaviso:
Sec. 18 EA. Termination of contracts of employment for unspecified periods of time
"(...) (2) Notwithstanding anything to the contrary contained in the contract of employment, the minimum length of any notice referred to in subsection (1)(b) shall-
(a) where the wages are payable in respect of any period exceeding a day but less than a week, be one day; or
(b) where the wages are payable in respect of any period not less than a week, be equal in length to the period:
Provided that-
(i) where an employee whose wages are payable in respect of any period not less than a week but less than two weeks have been in continuous employment for two or more but less than five years, the minimum length of notice shall be two weeks;
(ii) where an employee whose wages are payable in respect of any period not less than a week but less than a month has been in continuous employment for five or more but less than 10 years, the minimum length of notice shall be one month; or
(iii) where an employee whose wages are payable in respect of any period exceeding a day has been in continuous employment for 10 or more years, the minimum length of notice shall be six weeks.
(3) Notwithstanding subsection (2), where the contract of employment provides for a minimum length of any notice such as is referred to in subsection (1)(b) which is longer than the appropriate minimum length prescribed by subsection (2), the minimum length of any such notice shall be that for which the contract of employment provides.
(4) Nothing in this section shall prohibit either party to a contract of employment from waiving his entitlement to notice in any particular case. (...)"
Indemnización sustitutiva de preaviso: Si
Art 19 a) of the EA. either party to a contract of employment may-
(a) terminate the contract without giving such notice by paying to the other party a sum equal to the amount of basic pay which would otherwise have accrued to the employee during the minimum lawful period of such notice.
Notificación a la administración: Si
See art.25 - 2 of the EA: when an employer forms an intention to terminate contracts of employment for the purpose of reducing the size of his work force, he shall forthwith give written notice of that intention to the Commissioner.
A "Commissioner" means in the EA the Commissioner of Labour referred to in section 3 or any person acting in or lawfully performing the functions of his office.
Notificación a los representantes de los trabajadores: No
Aprobación de la administración publica o de organismos judiciales: No
Acuerdo de los representantes de los trabajadores: No
Definición de despido colectivo (número de empleados afectados) No definition of collective dismissal.
Notificación a la administración No
Notificación a los sindicatos (representantes de los trabajadores) Yes
See the art. 25-2 of the EA : when an employer forms an intention to terminate contracts of employment for the purpose of reducing the size of his work force, he shall forthwith give written notice of that intention to the Commissioner.
Notificación a los representantes de los trabajadores: No
Acuerdo de los sindicatos (representantes de los trabajadores) No
Acuerdo de los representantes de los trabajadores No
Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio) Yes
See art. 25-1 of the EA: Where an employer terminates contracts of employment for the purpose of reducing the size of his work force, he shall do so in respect of each category of employee, wherever reasonably practicable, in accordance with the principle commonly known as first-in-last-out:Provided that in so doing the employer shall take into account (i) the need for the efficient operation of the undertaking in question; and (ii) the ability, experience, skill and occupational qualifications of each employee
concerned.
Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...) Yes
See art. 25 al.3 of the EA
Where contracts of employment have been terminated for the purpose of reducing the size of a work force, the employer shall, if he again seeks employees in the occupations to which those contracts related, give priority of engagement, to such extent as is reasonably practicable, to those persons whose contracts of employment were so terminated: Provided that this subsection shall not apply where the employer seeks such employees
more than six months immediately after the contracts in question were terminated.
Reglas de prioridad para la re-contratación No
Severance pay:
Article 27 (1) EA on the "Entitlement to severance benefits on termination of contract of employment" provides that:
(1) Without prejudice to section 30, on the termination of a contract of employment, whether by reason of the death or retirement of the employee or for any other reason, the employer shall pay to an employee who has been in continuous employment with him for 60 months or more, a severance benefit at the rate prescribed:
Provided that-
(i) severance benefit shall be payable at the conclusion of each period of 60 months of continuous service by the employee, or at the termination of his employment, at the option of the employee;
(ii) where, upon the date of payment of any severance benefit, the employee, or his dependant or beneficiary, is at that date or some future date entitled to the payment of a gratuity or pension or both a gratuity and pension in respect of the period of employment under the contract, no severance benefit which would otherwise be payable in terms of this section to the employee or his dependant or his beneficiary shall be payable.
(iii) where the continuous employment began at any time before the commencement of this Act, that employment shall be deemed, for the purposes of this section, to have begun at the commencement of this Act.
(1A) Notwithstanding subsection (1), the employer shall, in the case of termination of a contract of employment before an employee has served a continuous period of 60 months, pay to the employee a severance benefit at a rate proportionate to that employee's length of service.
(2) For the purposes of calculating the severance benefit payable in accordance with this section-
(a) in subsection (1)-
(i) "month", in relation to the first 60 months of continuous employment, means a complete month and, in relation to continuous employment thereafter, means a complete month or any fraction thereof; and
(ii) "basic pay" means the basic pay payable to the employee at the time of the termination of the contract of employment; and
(b) where, at the time of the termination of the contract of employment, any leave is due to the employee or he has any other right of absence under this Act, the period of that leave or other right of absence shall be deemed to be part of his period of continuous employment.
(3) Where a severance benefit is payable in accordance with this section, either the employer or employee may, where there is a dispute as to the amount payable, apply, within such period and in such form and manner as may be prescribed, to the nearest labour officer to determine the amount of the benefit and, where such application is made, the nearest labour officer shall forthwith proceed to determine the amount of the benefit.
(4) Where the employer or employee is dissatisfied with any determination made by the nearest labour officer in accordance with subsection (3), he may appeal against that determination, within such period and in such form and manner as may be prescribed, to the Commissioner who may either dismiss the appeal and confirm the labour officer's determination or allow the appeal, either wholly or in part, and vary the amount of the benefit accordingly.
(5) A final determination of the amount of any severance benefit made by the nearest labour officer or the Commissioner under subsection (3) or (4), as the case may be, shall be conclusive of the amount of the benefit payable in accordance with this section.
(6) Any employer who fails to comply with this section shall be guilty of an offence and liable to the penalties prescribed by section 151(c).
Note: Before, only an employee who has been in continuous employment with an employer for 60 months or more was eligible for the severance pay. New: Now, the Amendment to Employment Act (Art. 27 (1A) ) and potential impact of October 20, 2010, provides that an employee who has been in continuous employment with an employer for less than 60 months can benefit from the severance payment, but this severance payment is proportional to the length of service.
The law provides for a right to severance pay (art. 27 al. 1 EA) for worker who has completed 60 months of continuous service. However, there are no statutory rules on the amount of SP.
New: The Amendment to Employment Act and potential impact of October 20, 2010 now provides that an employee who has been in continous employment with an employer for less than 60 months can benefit from the severance payment, but this severance payment is proportional to the length of service.
mineros: Si
See art. 27 AL.5 EA. A final determination of the amount of any severance benefit made by the nearest labour officer or the Commissioner.
directores/ gerentes: Si
Art 25 AL. 3 EA: Where contracts of employment have been terminated for the purpose of reducing the size of a work force, the employer shall, if he again seeks employees in the occupations to which those contracts related, give priority of engagement, to such extent as is reasonably practicable, to those persons whose contracts of employment were so terminated.
policía: No
Arbitraje: Si
See art. 27 AL.3 of the EA.
Where a severance benefit is payable in accordance with this section, either the
employer or employee may, where there is a dispute as to the amount payable, apply, within such period and in such form and manner as may be prescribed, to the nearest labour officer to determine the amount of the benefit and, where such application is made, the nearest labour officer shall forthwith proceed to determine the amount of the benefit..